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Chapter Nine: Advisory Opinions and Constitutional Conventions

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Chapter Nine: Advisory Opinions and Constitutional Conventions COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA), 2009 9-1 CHAPTER NINE: ADVISORY OPINIONS AND CONSTITUTIONAL CONVENTIONS KEY CONCEPTS FOR THE CHAPTER ● AMERICAN JUSTICES BELIEVE THAT THE POWER OF JUDICIAL REVIEW OF LEGISLATIVE ACTS IS BASED SOLELY ON THE JUDICIARY’S NECESSARY AND ESSENTIAL ROLE IN DECIDING LITIGATED “CASES OR CONTROVERSIES” ● AUSTRALIAN JUSTICES HAVE HELD THAT THE FACT THAT THE AUSTRALIAN CONSTITUTION CONFINES THE JURISDICTION OF THE HIGH COURT TO ‘MATTERS’ BARS ADVISORY OPINIONS. ● DRAWING ON 19TH CENTURY ENGLISH PRACTICE, CANADA ALLOWS REFERENCES TO THE SUPREME COURT OF CANADA ON “IMPORTANT QUESTIONS OF LAW OR FACT CONCERNING ANY MATTER” ● IN THE U.S., IT IS COMMONLY UNDERSTOOD THAT THE ONLY CONSTITUTIONAL LIMITS ON OFFICIAL BEHAVIOR ARE THOSE THAT WILL BE ENJOINED BY JUDGES; THE TRADITION OF THE BRITISH COMMONWEALTH OF “CONSTITUTIONAL CONVENTIONS” IS MORE EXPANSIVE, TO INCLUDE UNWRITTEN TRADITIONS THAT ARE WIDELY UNDERSTOOD AND ACCEPTED, BUT WHERE COURTS WILL NOT PROVIDE ANY LEGAL OR EQUITABLE RELIEF I. The Concept of an “Unconstitutional” Law or Government Act MARBURY v. MADISON SUPREME COURT OF THE UNITED STATES 5 U.S. 137; 2 L. Ed. 60; 1 Cranch 137 (1803 terms) [Ed. note: A bit of historic context may be helpful to the understanding of this landmark case. Although support for George Washington as the first American president was near-unanimous, two political parties quickly developed. One, under the leadership of Washington’s Vice President, John Adams, were often called the Federalists. The other, led by his Secretary of State, Thomas Jefferson, were called the Republicans. (Actually, the Jeffersonian faction morphed into “Democrat-Republicans” and then “Democrats” by the time of the election of Andrew Jackson in 1828, the latter day Republican party being created anew in the 1850s.) Adams defeated Jefferson in the election of 1796, but Jefferson won the re-match in 1800, sweeping in a majority of allies in Congress as well, thus setting up the first peaceful transition of power from one party to another in U.S. history. The transition was not entirely uneventful, however. President-elect Jefferson was not to be sworn in until March 4, 1801. (The Twentieth Amendment changes the inauguration date to January 20.) In January of that year, President COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA), 2009 9-2 Adams nominated, and the lame duck Federalist Senate confirmed, Adams’ Secretary of State, John Marshall, as the new Chief Justice. In February, the lame duck Federalist Congress enacted the Judiciary Act of 1801, doubling the number of federal judges, and creating 42 new justices of the peace for the District of Columbia. President Adams sought to fill every possible judicial position with his Federalist allies, rushing their nominations through on the eve of the expiration of his term of office. Adams principal deputy in this matter was his Secretary of State, John Marshall, who did not take his oath and assume the duties of Chief Justice until just days before the end of Adams’ term. The case arises when President Jefferson’s Secretary of State, James Madison, refused to perform the ministerial duty of turning over the commissions of office to those Federalist “midnight appointees” whom the Adams administration was unable to fully invest in office. The issue of judicial review arose in an interesting political context. The newly elected Republican Congress, outraged by Adams’ tactics, repealed the Judiciary Act of 1801. The Federalist minority in Congress objected that such a repeal would be unconstitutional, since the Constitution protected the tenure of judges. In response, the Republican majority denied that the Supreme Court had the power to invalidate unconstitutional legislation. The delay in the decision in Marbury was due to legislation that not only repealed the prior judge-creating statute, but eliminated the 1802 term of the Supreme Court!] MARSHALL, C.J.: AT the last term, viz. December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, esq. late attorney general of the United States [i.e., a member of President Adams’ cabinet], severally moved the court for a rule to James Madison, secretary of state of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in the due form were signed by the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given to that enquiry, either by the secretary of state or by any officer of the department of state; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was laid to show cause on the 4th day of this term. This rule having been duly served, Afterwards, on the 24th of February the following opinion of the court was delivered by the chief justice. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace of the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA), 2009 9-3 founded. *** This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. *** The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second enquiry; which is, 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [*163] The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. "In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded." *** The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. *** Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy.
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